(1) A prosecuting attorney before a county judge's court may not act as defense counsel in criminal cases in the circuit court of the same county.

(2) An attorney who is employed to defend a criminal case in circuit court before his election as prosecutor, may not continue such employment after taking office.

(3) Such a prosecuting attorney may not accept employment to defend criminal cases in the courts of other counties or in federal court.

Canon: 6 Opinions: ABA 16, 30, 55, 118, 186, 242, 261, 262

Chairman Smith stated the opinion of the committee:

A member of The Florida Bar poses for our response the following questions:

1. May the Prosecuting Attorney for a county judge's court act as defense counsel in criminal cases in the circuit court of the same county?

2. May an attorney who was employed to defend a criminal case in the circuit court of a county before his election as county prosecutor for the county judge's court of the same county continue the employment after taking office?

3. May the prosecuting attorney for a county judge's court accept employment to defend criminal cases in the circuit courts of other counties or in the United States District Court?

Three members of the Committee have answered each of the questions posed in the negative. These members rely upon a sizeable number of opinions rendered by the Professional Ethics Committee of the American Bar Association. ABA Opinions numbered 16, 30, 55, 118, 186, 242, 261, and 262 are pertinent to one or more aspects of the problems presented. Opinions 30 and 118 contain language which is deemed controlling. It is stated in Opinion 118 that “[a] county attorney is attorney for the state in the general matter of the enforcement of the criminal law, although the sphere of his activity is limited to a particular county.” In Opinion 30, it is said that if a public prosecutor is allowed to defend persons accused of crime in other jurisdictions, such action (1) would tend to jeopardize cooperation between law enforcement officers of different jurisdictions, (2) would invite public misunderstanding and distrust, (3) would undermine public confidence and tend to subject the prosecutor to suspicion, and (4) would tend to lower the dignity and honor of the profession.

One member of the Committee who responded answers the first question negatively, but answers all others in the affirmative. Another member answers all questions in the affirmative. These members based their reasoning primarily upon the possible impracticalities which might arise in large, sparsely populated judicial circuits.

All Committee members would recognize that the response to Question 2 would depend to some extent upon the time element. The newly elected prosecutor could well have a duty to afford a defense if there was insufficient time to withdraw and a continuance could not be obtained.